Nursing Home Residents Gain More Control Of Their Care

In my prior posting I focused
on the controversial sections limiting the use of arbitration agreements in
nursing facility admission contracts. That aspect of the new rule is currently
in limbo due to a lawsuit
brought by the nursing home industry.

But the updated nursing
home regulations span a much broader landscape as they attempt to improve the quality of life and
care for nursing home residents.

Here is an article
published recently by Kaiser Health News that
discusses some of the other changes being advanced under the new rule. It is republished
here with permission of Kaiser Health News.

About 1.4 million residents of
nursing homes across the country now can be more involved in their care under
the most wide-ranging revision of federal rules for such facilities in 25
years.

The changes reflect a shift
toward more “person-centered care,” including requirements for speedy care
plans, more flexibility and variety in meals and snacks, greater review of a
person’s drug regimen, better security, improved grievance procedures and
scrutiny of involuntary discharges.

“With proper implementation and enforcement,
this could really transform a resident’s experience of a nursing home,” said
Robyn Grant, director of public policy and advocacy for the Consumer Voice, a
national group that advocates for residents’ rights.

The federal Medicare and Medicaid
programs pay for most of the nation’s nursing home care — roughly $75 billion
in 2014 — and in return, facilities must comply with government rules. The new
regulations, proposed late last year by Health and Human Services Secretary
Sylvia Mathews Burwell, take effect in three phases. The first kicked in in
November.

They allow residents and their
families “to be much more engaged in the design of their care plan and the
design of their discharge plans,” said David Gifford, a senior vice president
at the American Health Care Association, which represents nearly 12,000
long-term-care facilities.

Grant goes even farther, saying
the new approach puts “the consumer in the driver’s seat.” Until now, she
noted, a person’s care has too often been decided only by the nursing home
staff. “And if the resident is lucky, he or she is informed about what that
care will entail, what will specifically be done and who will do it.”

HHS reviewed nearly 10,000
comments on its draft proposal before finalizing changes. One controversial
measure in the department’s final rule would prohibit nursing homes from
requiring residents to agree in advance to have any disputes settled through a
privately run arbitration process instead of the court system. The industry
association objected, claiming that Medicare officials have authority only to
regulate matters related to residents’ health and safety and that an
individual’s rights to use arbitration cannot be restricted. The ban is on
hold until the association’s lawsuit, to force the government to drop the
provision, is decided.

Here are highlights of the
requirements now in effect:

Making the
nursing home feel more like home: The regulations say that
residents are entitled to “alternative meals and snacks … at non-traditional
times or outside of scheduled meal times.” Residents can also choose their
roommates, which may lead to siblings or same-sex couples being together. And a
resident also has “a right to receive visitors of his or her choosing at the
time of his or her choosing,” as long as it doesn’t impose on another
resident’s rights.

Bolstering
grievance procedures: Nursing homes must now appoint an
official who will handle complaints and follow a strengthened grievance
process. Decisions must be in writing.

Challenging
discharges: Residents can no longer be discharged while appealing
the discharge. They cannot be discharged for non-payment if they have applied
for Medicaid or other insurance, are waiting for a payment decision or appeal a
claim denial.

If a nursing home refuses to
accept a resident who wants to return from a hospital stay, the resident can
appeal the decision. Also, residents who enter the hospital have a right to
return to their same room, if it is available.

A state’s long-term-care
ombudsman must now get copies of any involuntary discharges so the
situation can be reviewed as soon as possible.

Expanding
protection from abuse: The definition of abuse now includes
financial exploitation. Nursing homes are prohibited from hiring any licensed
professional who has received a disciplinary action because of abuse, neglect,
mistreatment or financial exploitation of residents.

Ensuring a
qualified staff: Consumer groups had urged federal officials to set
minimum staffing levels for registered nurses and nursing staff, but the
industry had opposed any mandates and none was included in the final rule.
Instead, facilities must have enough skilled and competent staff to meet
residents’ needs. There are also specific training requirements for caring for
residents with dementia and for preventing elder abuse.

“Competency and staffing levels
are not mutually exclusive,” said Toby Edelman, a senior policy attorney at the
Center for Medicare Advocacy. Person-centered care and other improvements
“don’t mean anything if you don’t have the staff who know the residents … and
can figure out why Mrs. Smith is screaming.”

Yet, requiring a certain number
of nurses could backfire, said Gifford. “It could actually result in places
that are above those ratios lowering their staffing levels and other places
that would increase staffing when they don’t need it and could be putting their
resources into better care to meet the needs of the residents.”

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About Me

I am a Pennsylvania lawyer with over 35 years experience in estate planning and elder law. I was selected by US News Best Lawyers® as its Lawyer of the Year in Elder Law for 2014 for the Harrisburg, Pennsylvania metropolitan region.
I am of counsel to Marshall, Parker and Weber, a law firm which has offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton, Pennsylvania. I am past President and a founder of PAELA (the Pennsylvania Association of Elder Law Attorneys). However, the views expressed on this site are my own and not those of PAELA or of Marshall, Parker and Weber.
Most importantly I am a husband, father and grandfather.